Opinion
No. 318 EDA 2004.
Filed: December 6, 2004.
Appeal from the Order January 21, 2004, In the Court of Common Pleas of Philadelphia County, Civil Division at No. 9304-3246.
Before: MUSMANNO, OLSZEWSKI and POPOVICH, JJ.
¶ 1 Sandra J. Basile (Basile), representative of a class of plaintiffs in a class-action suit against HR Block, Inc., (Block) and HR Block Tax Services, Inc., (Block Tax Services), appeals the order entered on January 21, 2004, in the Court of Common Pleas of Philadelphia County, that decertified the class. On appeal, Appellants contend that the trial court abused its discretion when it decertified the class. Additionally, Appellees have filed a motion to strike portions of Appellants' brief and reproduced record as scandalous and impertinent. Upon review, we affirm and grant Appellees' motion to strike filed August 3, 2004. We also deny as moot Appellees' outstanding motion to strike Appellants' issue regarding judicial bias.
We will refer to Basile and the plaintiff class collectively as Appellants and to Block and Block Tax Services as Appellees.
¶ 2 The torturous facts and procedural history of this case are set forth in part in Basile v. HR Block, Inc., 777 A.2d 95 (Pa.Super. 2001) (Basile IV), as follows:
Between 1990 and 1993, [. . .] Sandra J. Basile and Laura Clavin [(Clavin)] retained Block to prepare their federal and state income tax returns and obtain tax refunds from the Internal Revenue Service. Subsequently, Basile and Clavin filed a class action complaint, alleging that during the tax preparation process Block enlisted their participation in its "Rapid Refund" service and did not disclose that their "rapid refunds" were, in fact, short-term, high-interest loans (loans) secured by the taxpayers' pending refunds. [Appellants] alleged further that Block shared in the interest and fees collected on the loans but did not apprise them of its financial interest.
[Appellants] contend[ed], accordingly, that Block secured their participation in the "Rapid Refund" service on the basis of false pretense, as a consequence of which they paid interest ranging from a low of 32% to a high of 151%, based on the amount of the loan. Accordingly, [Appellants] asserted causes of action for [v]iolation of the Truth in Lending Act, 15 U.S.C. § 1638; [f]raud; [n]egligent [m]isrepresentation; [v]iolation of the Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 P.S. §§ 201-2 through 201-9.2 (UTPCPL); [v]iolation of the Delaware Legal Rate of Interest, 6 Del. Code § 2301(a); and [b]reach of [f]iduciary [d]uty. In support of their assertion of fiduciary duty, [Appellants] alleged that their relationship with Block was confidential in nature, and/or that Block had acted as an agent in preparing their tax returns and obtaining their "rapid refunds."
Subsequently, Block and co-defendant Mellon Bank, N.A., served notice of removal of the case to the United States District Court for the Eastern District of Pennsylvania [. . .] on the basis of federal diversity jurisdiction. The federal court dismissed [Appellants'] Truth in Lending and interest rate claims and remanded the matter to the Court of Common Pleas for disposition of [Appellants'] state law claims. See Basile v. HR Block, Inc., 897 F. Supp. 194, 199 (E.D.Pa. 1995) ( Basile I). In state court, [Appellants] requested class action certification. The court denied certification of [Appellants'] fraud, misrepresentation, and UTPCPL claims, but granted certification of their claim of breach of fiduciary duty. The court delineated the class as:
All Pennsylvania residents who, while having their tax returns prepared by Block, applied for and received a "Rapid Refund" of their federal tax refund during the years 1990 through 1993 through Block's Rapid Refund Anticipation Loan Program at Block's offices or places of business located in the Commonwealth of Pennsylvania.
¶ 3 Order of Court, 5/30/97, at 2.
The court certified [Basile] as class representative, but declined to so certify [Clavin], concluding that Clavin, as employee of class counsel, was subject to a conflict of interest.
Subsequently, [Appellants] and Block filed cross-motions for summary judgment. Block challenged [Appellants'] fiduciary duty claim, asserting that the evidence failed to establish either an agency or confidential relationship between the parties. The court granted Block's motion and denied [Appellants'] cross-motion, concluding, inter alia, that "the extent of [Basile's] contact with Block during the preparation and filing of her tax returns speaks to the lack of confidential relationship defined by law." Memorandum Opinion and Order, 12/31/97, at 7. [Appellants] appealed from the court's order granting summary judgment on their claim of breach of fiduciary duty, as well as from certain provisions of the prior class certification order. We addressed [Appellant's] appeal, as well as a cross-appeal filed by Block and Mellon, and rendered an Opinion in Basile v. HR Block, Inc., 1999 PA Super 44, 729 A.2d 574 (Pa.Super. 1999) ( Basile II). We determined that evidence adduced by [Appellants] in discovery established an agency relationship between [Appellants] and Block as a matter of law, as a consequence of which Block owed all members of the plaintiff class a fiduciary duty extending to all matters within the scope of the tax preparer-taxpayer relationship. See id. at 582. Accordingly, we concluded that the trial court had abused its discretion in granting Block's motion for summary judgment and remanded the matter to the trial court for consideration of issues of fact. See id. We concluded also that the court had erred in refusing to certify [Appellants'] UTPCPL claims to proceed as a component of the class action. See id. at 584. We did not address [Appellants'] assertion that Block owed members of the plaintiff class a fiduciary duty arising from a confidential relationship.
Thereafter, Block sought review of our decision in the Supreme Court of Pennsylvania, limited to the issue of whether Block owed a fiduciary duty to the members of the plaintiff class by reason of an agency relationship. The Supreme Court granted allowance of appeal limited to the issue of "the propriety of the Superior Court's conclusion that an agency relationship existed between [the plaintiff class] and Block such that [the plaintiff class] may pursue a claim that Block breached its fiduciary duties to them." Basile v. HR Block, Inc., [ 563 Pa. 359, 365, 761 A.2d 1115, 1118 (2000)] ( Basile III). Upon review, [our] Supreme Court found that "the pleadings here do not establish an agency relationship," id. at 1121, and held as a matter of law that "Block was not acting as [Appellant's] agent in the RAL [loan] transactions, such that they were subject to a heightened, fiduciary duty." Id. Accordingly, the Court vacated our order and remanded the matter for consideration of [Appellants'] alternative argument that "even if a principal-agent relationship did not exist, Block owed [Appellants] a fiduciary duty as a result of a confidential relationship." Id. at 1122. The Court directed that we consider the confidential relationship issue "in the first instance." See id. at 1123.
Basile IV, 777 A.2d at 98-100.
¶ 4 On remand from our Supreme Court, we reviewed the record and concluded that Appellants presented sufficient prima facie evidence of a confidential relationship between themselves and Appellees to establish a fiduciary duty. Accordingly, we found that the trial court erred in its grant of summary judgment in favor of Appellees, and we reversed the trial court's judgment. See Basile IV, 777 A.2d at 103, 107. We remanded the case to the trial court with the directive to the trial court that if Appellants succeeded in demonstrating to the fact-finder a confidential relationship, Appellees would be bound by a corresponding fiduciary duty as a matter of law. Id., 777 A.2d at 107.
¶ 5 Following remand, the trial court conducted a status conference on September 30, 2002, whereat Appellees indicated that they intended to file a motion to decertify the class. The trial court permitted this motion and established a briefing schedule. Following submission of the parties' briefs, the trial court conducted argument on the motion on December 16, 2002. Thereafter, Appellants contend that the trial court scheduled sua sponte a settlement conference and that the trial court recommended that Appellants accept a $10 million dollar settlement from Appellees. The docket remained silent until January 12, 2004, whereupon Appellants filed a motion for recusal of the trial judge. The trial court did not rule on the recusal motion, but, instead, on January 21, 2004, it filed an order decertifying the class. On that same day, Appellants filed a notice of appeal to this Court. The trial court did not order Appellants to file a Pa.R.A.P. 1925(b) statement. However, on March 21, 2004, the trial court authored an opinion in support of its decertification order. Following submission of briefs to this Court, on June 9, 2004, Appellees filed a motion to strike off as scandalous and impertinent certain documents contained in Appellants' reproduced record not appearing in the certified record which referenced the alleged settlement conference. Appellees also sought to strike off Appellants' arguments regarding the trial judge's failure to recuse himself because they referenced the information they sought to be struck from the reproduced record. On June 29, 2004, we granted in part Appellees' motion and ordered Appellants to file a revised reproduced record which contained no reference to documents that were not present in the certified record. See Basile v. HR Block, Inc., 318 EDA 2004 (Pa.Super. filed 6/29/2004) (unpublished order). We also ordered Appellants to file a revised brief containing no references to materials that were not included in the original certified record transmitted to this Court. See id. We deferred disposition of Appellees' motion to strike Appellants' recusal issue until our adjudication of this issue. See id.
Appellees sought to strike pages 4282a, 4426a, and 4504a-4520a of the reproduced record.
We instructed Appellants to remove pages 4504a-4507a and 4423a-4435a from the reproduced record.
¶ 6 Pursuant to our directive, Appellants filed a revised reproduced record and revised brief with this Court. However, on August 3, 2004, Appellees filed a second motion to strike, alleging that Appellants failed to delete all reference in their revised brief to materials this Court struck from the reproduced record. We deferred disposition of Appellees' motion to strike until our present adjudication.
¶ 7 In Appellants' response to Appellees' second motion to strike, they concede that they referenced in their brief materials this Court ordered removed from the reproduced record. Accordingly, we grant Appellees' second motion to strike, and we will not consider these materials in our adjudication of this appeal.
¶ 8 Before we recite Appellants' issues, we also must consider whether the trial court's January 21, 2004 order is an appealable order. Rieser v. Glukowsky, 646 A.2d 1221, 1223 (Pa.Super. 1994) (stating that issue of jurisdiction may be raised by appellate court sua sponte).
¶ 9 Generally, appeals lie only from a "final order." See 42 Pa.C.S.A. § 742. A final order is an order that meets any of the following three criteria: (1) the order disposes of all claims and of all parties; (2) the order is defined expressly as a final order by statute; or (3) the order is entered as a final order pursuant to Rule 341(c) (relating to entry of final order as to one or more but fewer than all claims and parties upon express determination that immediate appeal would facilitate resolution of entire case). See Pa.R.A.P. 341(a), (b). The comment to Rule 341 states that an order denying class certification in a class action case is no longer appealable as a final order pursuant to Rule 341. See Pa.R.A.P. 341 comment; see also DiLucido v. Terminix Int'l, 676 A.2d 1237, 1238 (Pa.Super. 1996). This rule also is applicable to orders decertifying a class because orders denying class certification and decertifying previously recognized classes are both controlled by Pa.R.Civ.P. 1710, and each order has the same practical effect on a case. As suggested by the comment to Rule 341, the decertification order does not dispose of all claims and all parties because, although the order decertifies the class of parties plaintiff, the claims which each class member could bring individually are not extinguished by the order. Moreover, Pa.R.Civ.P. 1710 does not define a decertification order as "final." Accordingly, we conclude that the trial court's January 21, 2004 order is not final order. See Pa.R.Civ.P. 341 comment; see also DiLucido, 676 A.2d at 1238.
Prior to the 1992 amendments to Rule 341, a decertification order was appealable as a "final order" because an order denying or decertifying a class "contained an aspect of finality," and was, therefore, deemed a final order. DiLucido, 676 A.2d at 1238.
¶ 10 Therefore, in order for this Court to exercise appellate jurisdiction over the present case, the January 21, 2004 order must qualify as a "collateral order." The "collateral order doctrine" is an exception to the finality rule and permits immediate appeal as of right from an otherwise interlocutory order where the appellant demonstrates that the order appealed from meets the following elements: (1) it is separable from and collateral to the main cause of action; (2) the right involved is too important to be denied review; and (3) the question presented is such that if review is postponed until final judgment in the case, the claimed right will be irreparably lost. See Pa.R.A.P. 313; see also Witt v. LaLonde, 762 A.2d 1109, 1110 (Pa.Super. 2000) (citations omitted).
We note that Appellants have not sought appeal of the January 21, 2004 by permission.
¶ 11 In DiLucido v. Terminix Int'l, 676 A.2d at 1239, we held that an order denying class certification was an appealable collateral order. Upon review, we found that an order denying class certification was separable from the underlying cause of action and that the ability of a class of plaintiffs to pursue a class action was too important to be denied review. DiLucido, 676 A.2d at 1239. We found that the right to pursue a class action suit by a class was too important to be denied review because class actions were established to resolve numerous meritorious claims at one time, to prevent repetitious litigation, and to provide small claimants with an opportunity to seek compensation for claims that would be otherwise too small to litigate. Id., 676 A.2d at 1239. Further, if appellate review was forestalled, the class's right to pursue a class action suit would be irreparably lost because class members with small claims would be turned away without recourse if an order denying class certification could not be appealed. Id., 676 A.2d at 1239. Accordingly, we concluded that the order denying class certification was an appealable collateral order and reviewed the merits of the class's argument. Id., 676 A.2d at 1239.
¶ 12 The holding of DiLucido applies to the present case. As stated above, orders decertifying a class and denying class certification are both controlled by Pa.R.Civ.P. 1710, and each order has the same practical effect on a case. Accordingly, were we to decline to review the present case, our decision would have the effect of putting class members with small claims out of court. See, e.g., DiLucido, 676 A.2d at 1239. Thus, we conclude that the trial court's January 21, 2004 order that decertified the class is an appealable collateral order. Id., 676 A.2d at 1239. Therefore, we turn to an analysis of the merits of Appellants' issues.
¶ 13 Appellants present the following issues for our review:
1. Whether, in light of the Superior Court's reversal of [the trial court's] denial of class certification on [Appellants'] UTPCPL claims and reversal of [the trial court's] grant of summary judgment, and after a merits analysis, and in the absence of the presentation of any new facts or law, the trial court abused its discretion in permitting [Appellees] to file a [motion for decertification of the class]?
2. Whether the trial court erred in not following the mandate of the Superior Court which required the certification of [Appellants'] UTPCPL claims consistent with [ Basile II IV]?
3. Whether the trial court erred in granting [Appellees' motion for decertification] in light of the Superior Court's finding that the evidence presented before the trial court "was sufficient to establish, prima facie, the elements of a confidential relationship between the parties in this case[,]" and in light of the [Pennsylvania] Supreme Court's subsequent denial of [Appellees' petition for allowance of appeal,] and [because Appellees] failed to present any new facts or law[?]
4. Whether the trial court erred in its application of Frowen v. Blank, 493 Pa. 137, 425 A.2d 412 (1981), by requiring the finding of both overmastering influence and weakness, dependence or trust, justifiably reposed?
5. Whether the [trial court's] order decertifying the class was a direct response to [Appellants'] refusal to accept the trial court's recommendation to settle the case and a request for recusal as a result of the [trial court's] statements during the [trial court's] settlement conference?
6. Whether on reversal or remand, this matter should be reassigned to a different trial court judge.
We have reorganized Appellants' issues.
Appellants' brief, at 4.
¶ 14 We address Appellants' first and second issues jointly because they present essentially the same issue for our review, i.e., whether the trial court erred in entertaining Appellees' motion to certify in light of our prior holdings in Basile II and Basile IV. In essence, this issue contends that the trial court could not entertain the motion because it was barred by the doctrine of the "law of the case." Accordingly, this issue presents this Court with a pure question of law, and, therefore, our standard of review is plenary. See Wojdak v. Greater Philadelphia Cablevision, 550 Pa. 474, 488, 707 A.2d 220 (1998).
¶ 15 Appellants contend first that Appellees were required to file a cross-appeal with this Court during the pendency of Appellants' appeal to this Court in Basile II and argue that, if this Court reversed the trial court's grant of summary judgment, the trial court should be required to decertify the class. Reference to Basile II indicates that Appellees did file a cross-appeal with this Court that asserted that the trial court erred in ordering a presumption of agency for the purpose of determining whether Appellants' case could continue as a class action. Basile II, 729 A.2d at 587. We found this argument waived as a result of Appellees' failure to contest the propriety of the certification order in the trial court. Id., 729 A.2d at 587 ( citing Pa.R.A.P. 302 (issues not raised in trial court are waived on appellate review)).
¶ 16 Nevertheless, our finding of waiver cannot be interpreted to mean that Appellees lost the ability to file a motion to decertify the class following remand or that the trial court could not entertain such a motion. We found Appellees' argument waived based on the well-settled principle that appellate courts cannot entertain notions of trial court error without preservation of the issue at the trial court level. See, e.g., Pa.R.A.P. 302. This decision was based on the law of appellate procedure and not the substantive question of whether the class should or should not be decertified.
¶ 17 Reference to Pa.R.Civ.P. 1710(d) (relating to orders revoking or denying class certifications) indicates that a class-certification order is not "final" until a decision on the merits of the case has been rendered by the trial court and that a trial court may decertify a class at any point until that time. Therefore, because the trial court's grant of summary judgment was eventually reversed by this Court in Basile IV, there was no "decision on the merits," and, as such, the trial court was able to entertain Appellees' motion to decertify. See Pa.R.Civ.P. 1710(d). Accordingly, Appellees' previous failure to challenge the decertification motion in this Court is of no moment in our consideration of the present case.
¶ 18 Appellants also argue that our reversal of summary judgment in Basile IV precluded the trial court from decertifying the class. We held in Basile IV that Appellants presented sufficient prima facie evidence of a confidential relationship between themselves and Appellees, and, thereby, demonstrated sufficient prima facie evidence of a fiduciary duty owed by Appellees to Appellants. See Basile IV, 777 A.2d at 103. Therefore, we reversed the trial court's grant of summary judgment. See id. Accordingly, our holding was limited to the conclusion that Appellants' underlying cause of action presented a genuine question of material fact such that the trial court's entry of summary judgment in favor of Appellees was improper. See, e.g., Eckerd Corp. v. Glen Eagle Retail L.P., 853 A.2d 385, 386 (Pa.Super. 2004) (grant of summary judgment improper where genuine question of material fact exists).
¶ 19 Our holding, however, required an analysis only of the facial validity of the underlying cause of action. Under our well-settled summary judgment standard of review, this Court does not assume the role of a fact-finder. Rather, our duty is view the record in a light most favorable to the non-moving party (in this case, Appellants) to determine if a question of material fact exists. If, following our review of the record, a question of material fact is presented, we conclude as a matter of law that the controversy alleged is valid on its face, and we reverse the judgment so that the case may proceed to the fact-finding stage of trial. See Pappas v. Asbel, 564 Pa. 407, 418, 768 A.2d 1089, 1095 (2001).
¶ 20 On the other hand, a class certification order presents a far different question than whether the underlying cause of action is valid on its face. As indicated above, a class-certification order is an order collateral to the underlying cause of action, which, as Rule 1710(d) indicates, may be revisited by the trial court or any party at any point prior to a decision on the merits of the case. Thus, the very essence of the class certification order is such that it may be decided separately from the underlying merits of the case at any point before a decision on the merits is reached. See DiLucido, 676 A.2d at 1239 (collateral order is order that is separable from and collateral to main cause of action). As discussed above, our reversal of the trial court's judgment rendered void the trial court's "decision on the merits" and, therefore, permitted the trial court to consider anew the question of class certification. See Pa.R.Civ.P. 1710(d). Therefore, Appellants' argument that our reversal of the trial court's grant of summary judgment required the trial court in the present case to accept as true the presumptions of fact necessary for this Court to reach a conclusion regarding the facial validity of the suit both misstates and misapprehends the well-developed body of law regarding summary judgment in this Commonwealth and, as such, fails.
¶ 21 Quizzically, Appellants also contend that "this Court knew and appreciated its finding of a confidential relationship on a class-wide basis [in] the specific reversal in [ Basile II] of [the trial court's] order denying certification of the class under [Appellants'] claim that [Appellees] violated the UTPCPL." Appellants' brief, at 28 (emphasis added); see also Basile II, 729 A.2d at 584. Therefore, Appellants argue that the trial court's subsequent decertification of the class was erroneous because it violated our holding in Basile II. In the first instance, this Court did not decide whether a confidential relationship existed between the parties in Basile II. Rather, we found that an agency relationship existed between the parties, and, therefore, we concluded that the trial court's previous denial of class certification on Appellants' UTPCPL claims was erroneous. Thereafter, the Pennsylvania Supreme Court concluded that our finding of an agency relationship between the parties was erroneous, and the Court vacated our holding in Basile II in its entirety and remanded with the directive that this Court consider whether a confidential relationship existed between the parties. Basile III, at 370-72, 761 A.2d at 1121-22.
The trial court originally refused to certify Appellants' UTPCPL claims because it concluded that they lacked commonality and typicality due to the need for each potential plaintiff to establish detrimental reliance in order to prevail on a UTPCPL claim. Basile II, 729 A.2d at 583.
¶ 22 As such, Appellants' assertion that this Court "appreciated its finding of a confidential relationship" in Basile II is spurious. Moreover, as the Supreme Court vacated Basile II in its entirety in Basile III, Appellants cannot rely on it for the proposition that we are bound by our previous disposition of the UTPCPL claim certification issue. This is especially true, because our previous disposition of the UTPCPL claim certification issue was based on our erroneous conclusion that an agency relationship existed between the parties. Basile II, 729 A.2d at 584. As such, we are satisfied that the trial court did not violate the law of the case doctrine when it entertained Appellees' motion to decertify the class. Accordingly, Appellants' issue fails.
Appellants also argue that the trial court abused its discretion by entertaining Appellees' motion to decertify because there were no new developments in the case that revealed a prerequisite for certification was left unsatisfied. The sole support for this argument presented by Appellants was that the trial court ignored our "findings" regarding the existence of a confidential relationship in Basile II. As we have already found this argument to be without merit, we will not re-address it.
¶ 23 Next, Appellants contend that the trial court erred when it granted Appellees' decertification motion. Our review of this issue is governed by the following standard:
In large part, Appellants' argument merely re-states their previous arguments with respect to the trial court's alleged error in entertaining Appellees' motion, which arguments we have found unavailing.
It is the strong and oft-repeated policy of this Commonwealth that, in applying the rules for class certification, decisions should be made liberally and in favor of maintaining a class action. This is because such suits enable the assertion of claims that, in all likelihood, would not otherwise be litigated. The court may alter, modify, or revoke the certification if later developments in the litigation reveal that some prerequisite to certification is not satisfied.
At a class certification hearing, the burden of proof lies with the proponent; however, since the hearing is akin to a preliminary hearing, it is not a heavy burden. The proponent need only present evidence sufficient to make out a prima facie case from which the court can conclude that the five class certification requirements are met. This will suffice unless the class opponent comes forward with contrary evidence; if there is an actual conflict on an essential fact, the proponent bears the risk of non-persuasion. Requiring an affirmative showing that the requirements have been met for class certification is, however, inappropriate, because the stage of proceedings at which the class certification is to be initially determined and the trial court's extensive supervisory powers over class actions obviate the need for a strict burden of proof.
Trial courts are vested with broad discretion in making such decisions. Accordingly, the [trial] court's order denying class certification will not be disturbed on appeal, unless the court neglected to consider the requirements of the rules or abused its discretion in applying them.
Unlike its federal [c]ounterpart, [. . .] Pennsylvania's rule does not require that the class action method be superior to alternative modes of suit.
Debbs v. Chrysler Corp., 810 A.2d 137, 153-54 (Pa.Super. 2002) (citations and quotations omitted).
¶ 24 The prerequisites to class certification are set forth in Pa.R.Civ.P. 1702, as follows:
One or more members of a class may sue or be sued as representative parties on behalf of all members in a class action only if
(1) the class is so numerous that joinder of all members is impracticable;
(2) there are questions of law or fact common to the class;
(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class;
(4) the representative parties will fairly and adequately assert and protect the interests of the class under the criteria set forth in Rule 1709; and
(5) a class action provides a fair and efficient method for adjudication of the controversy under the criteria set forth in Rule 1708.
¶ 25 In applying the aforementioned rule, we have held the following:
Class certification is a mixed question of law and fact. Weismer by Weismer v. Beech-Nut Nutrition Corp., 615 A.2d 428, 430 (Pa.Super. 1992). Courts should not dispose of class issues such as numerosity and typicality based on the perceived adequacy or inadequacy of the underlying merits of the claim. See [Basile II] citing, Pa. R.C.P. 1707 (Explanatory Note-1977)[, vacated by, Basile III]. On the other hand, courts may need to examine the elements of the underlying cause of action in order to dispose of class issues properly. See Weinberg [ v. Sun Co., 565 Pa. 612, 616, 777 A.2d 442, 446 (2001)] (because false advertising claims under the UTPCPL require individualized proof of reliance, causation, and proof of loss, individual claims predominated over common issues; therefore, "the certification requirements of commonality and numerosity were not met").
Debbs, 810 A.2d at 154.
¶ 26 First, Basile was obligated to demonstrate to the trial court that the class of putative plaintiffs was "so numerous as to make joinder of all members impracticable." See Pa.R.Civ.P. 1702. The trial court concluded that the numerosity element was satisfied in this case. We agree. The class of parties plaintiff encompasses all those that utilized Appellees' services in the Commonwealth of Pennsylvania to obtain a "Rapid Refund." This class is undefined and numbers in the thousands. Therefore, joinder of the putative plaintiffs is impracticable and would strain the resources of the trial court. See Janicik, 451 A.2d at 456. Accordingly, we are satisfied that Basile met the numerosity requirement.
¶ 27 Next, Basile was obliged to demonstrate that common questions of law or fact existed among the class members. The trial court concluded that Basile failed to demonstrate the commonality requirement.
¶ 28 Pursuant to our holding in Basile IV, the trial court considered whether common questions of law and fact existed among the class regarding the alleged breach of fiduciary duty via confidential relationship between Appellees and the class. See Trial court opinion, 3/26/2004, at 11. The trial court concluded that the nature of a confidential relationship required a demonstration of circumstances which made it clear that the parties did not deal on equal terms and that one side exerted an overmastering influence over the other or the other side demonstrated a weakness, dependence, or trust, justifiably reposed. See id. ( citing Frowen v. Blank, 493 Pa. 137, 145, 425 A.2d 412, 417 (1981)). The trial court concluded that the unique qualities of each class member impacted on the level of trust placed in Appellees, and, therefore, these questions could not be resolved on a class-wide basis. See id., at 11. We agree with the trial court's conclusion.
¶ 29 It is true, as Appellants assert, that individualized questions existing among class members may not be fatal to class certification, but the facts surrounding each plaintiff's claim must be substantially the same so that proof as to one claimant would be proof as to all. Weismer, 615 A.2d at 431. However, in the present case, it is far from certain that each individual plaintiff stood in a weakened position relative to Appellees or that Appellees exerted such an overmastering influence over the plaintiffs that their free agency was virtually destroyed. Although many plaintiffs may have placed undue trust in Appellees due to Appellees' business practices, the type of inquiry necessary to determine such is not amenable to class treatment. Cf. Debbs, 810 A.2d at 157 (class certification improper where underlying claim requires individualized examination of relationships between individual plaintiffs and defendant). Therefore, we are satisfied that the trial court determined correctly that the element of commonality was lacking in the present case.
¶ 30 We are also satisfied that the trial court was correct in its conclusion that the element of typicality was not present such that class decertification was proper. This factor required Appellant Basile to demonstrate that her overall position on the common issues was sufficiently aligned with those of the absent class members to ensure that her pursuit of her own interests will advance those of the proposed class members. Janicik, 451 A.2d at 457. Because of the varying degrees of trust among the individual plaintiffs and Appellees, their prospective causes of action will not be sufficiently aligned with those of Basile.
¶ 31 Therefore, as Basile failed to demonstrate the elements of commonality and typicality, we need not address whether she fulfilled the remaining elements set forth in Pa.R.Civ.P. 1702. See Weismer, 615 A.2d at 431.
We also note that the trial court, in its opinion of March 24, 2004, did not analyze Appellants' UTPCPL claim under the rubric of Pa.R.Civ.P. 1702. Nevertheless, the only assertion of error Appellant makes with regard to the trial court's omission is that the trial court was required to certify the class of UTPCPL claims because Appellees failed to appeal our reversal of the trial court's original decertification of the UTPCPL claims in Basile II. We have already rejected this argument. Moreover, we find that our reasoning that the need for individualized inquiry into the level of confidentiality that each plaintiff had with Appellees would make the case not amenable to a class action suit also to be applicable to Appellants' UTPCPL cause of action. To prevail on such claims, in the absence of a fiduciary relationship, a plaintiff must demonstrate detrimental reliance, and, as such, the individualized questions raised by such a burden would create a significant barrier to class certification. Debbs, 810 A.2d at 157.
¶ 32 Appellants next assert that the trial court erred in its application of Frowen, and, as a result, this error caused the trial court's decertification of the class. Specifically, Appellants contend that the trial court based its decision to decertify the class on the conclusion that, in order to prove a confidential relationship with Appellees, Appellants would have to demonstrate both overmastering influence on the part of Appellees and weakness, dependence, or trust, on the part of the class. Of course, Frowen holds that a showing of either overmastering influence on one side or weakness, dependence, or trust on the other side to establish a confidential relationship, and, as such, a plaintiff need not demonstrate both conditions. See Frowen, at 145, 425 A.2d at 417.
¶ 33 The trial court did not misapply Frowen. The trial court merely concluded that a common proof of a confidential relationship between Appellees and the individual plaintiffs was not possible, and, therefore, it should decertify the class. See Trial court opinion, 3/24/2004, at 11. Therefore, the trial court was not obligated to consider the underlying question of whether Appellees exercised overmastering influence over the individual members of the class or to consider the weakness of each class member in relation to Appellees. Rather, its decision indicates that proving such relationships was not amenable to a class action suit. Accordingly, Appellants' argument fails.
¶ 34 Appellants' next issue contends that the trial judge, the Honorable Stephen E. Levin, was biased in favor of Appellees because he decertified the class in retaliation of Appellants refusal to accept Judge Levin's recommendation to settle the case and as a result of Appellants' filing of a petition for his recusal. Appellants' contend that Judge Levin ordered sua sponte a settlement hearing and advised Appellants' counsel to accept a $10 million dollar settlement because it might adversely affect a pending federal case in Illinois.
¶ 35 Allegations of judicial bias carry with them a burden on the part of the party complaining of bias to set forth, with specificity, evidence establishing bias, unfairness, or prejudice necessitating recusal. See Feingold v. Hill, 521 A.2d 33, 39-40 (Pa.Super. 1987). Appellants cannot meet this burden as the record certified to this Court fails to demonstrate any evidence of judicial impropriety; no transcript of this alleged settlement conference exists, and Appellants presented no other support for this issue other than ex parte communications that this Court struck previously from the reproduced record. Accordingly, we deem this argument waived. See Pa.R.A.P. 2119(c) (argument requiring reference to record shall set forth place in record where reffered matter appears); see also Taurino v. Ellen, 579 A.2d 925 (Pa.Super. 1990), allocatur denied, 527 Pa. 503, 589 A.2d 693 (1991) (claim on appeal waived where appellant fails to cite supportive precedent or give record evidence to substantiate argument). Therefore, we dismiss Appellants' claim. We also deny as moot Appellees' motion to strike this issue.
¶ 36 Because we have found Appellants' complaint of judicial bias waived, we need not address their final issue regarding assignment of the case to a different judge.
¶ 37 Inasmuch as we have found that Appellants' claims fail or are waived, we affirm the decertification order of the trial court.
¶ 38 Order affirmed. Motion to strike scandalous matter in revised brief granted. Motion to strike issue denied as moot.
¶ 39 MUSMANNO, J. files a Dissenting Statement.
¶ 1 While the learned majority offers a thoughtful analysis in this matter, I am constrained to dissent from their decision reached in this case because I believe that the trial court should not have entertained H R Block's Motion to decertify the class.
¶ 2 Pennsylvania Rule of Civil Procedure 1710 permits trial courts to decertify a previously certified class, prior to a decision on the merits. Rule 1710 provides in relevant part as follows:
(d) An order under this rule may be conditional and, before a decision on the merits, may be revoked, altered or amended by the court on its own motion or on the motion of any party. Any such supplemental order shall be accompanied by a memorandum of the reasons therefore.
Pa.R.C.P. 1710(d) (emphasis added).
The language of Rule 1710, permitting decertification of a class up to the point where the court makes a decision on the merits, is distinct from that of corresponding Federal Rule of Civil Procedure 23(c)(1)(c), which provides that an order certifying a class action "may be altered or amended before final judgment." Thus, Rule 1710 permits reconsideration of class certification up to the point where the court has made a decision on the merits, not to the point of final judgment.
¶ 3 Here, the decertification of the class occurred after the merits of the case had been decided by the trial court. The record indicates that this case was initiated in April of 1993. In January 1996, the trial court issued an Order indicating that it would assume the existence of an agency relationship between the parties for purposes of the class certification ruling. In May of 1997, the trial court assumed the existence of an agency relationship and certified the class limited to the breach of fiduciary duty claim. Subsequently, the trial court ruled on the merits of the case when it granted Block's Motion for summary judgment and found that Block did not owe the class a fiduciary duty because there was no agency relationship and no confidential relationship between the parties. Accordingly, this decision on the merits, which was requested by Block, precluded the trial court's subsequent decertification of the class.
¶ 4 Moreover, Block waived its challenge to the class certification by failing to appeal the Order granting certification at the first opportunity on appeal. We have long held that orders granting class certification are interlocutory. Allegheny County Housing Authority v. Berry, 487 A.2d 995, 999 (Pa.Super. 1985). However, such orders become final and appealable after the trial court grants a motion for summary judgment. See Gersenson v. Pennsylvania Life and Health Insurance Guaranty Association, 729 A.2d 1191 (Pa.Super. 1999) (addressing class action defendant's appeal from orders denying defendant's motion for summary judgment and granting class plaintiffs' motion for summary judgment, and from order granting class certification).
¶ 5 Here, the May 1997 interlocutory Order granting class certification became appealable when the trial court granted summary judgment. The record reflects that the class plaintiffs appealed the Order granting summary judgment to this Court and Block likewise filed a cross-appeal. Basile v. H R Block, Inc., 729 A.2d 574, 579 (Pa.Super. 1999). In its cross-appeal, Block only challenged the trial court's 1996 Order, which affixed a presumption of agency to the consideration of the class certification. Although presented with the opportunity to do so, Block failed to challenge the Order granting class certification in its cross-appeal and thus waived later challenges. Accordingly, for the foregoing reasons, I would reverse the Order decertifying the class and remand the case for further proceedings.
In its brief to this Court, Block contends that it could not have appealed from the Order granting summary judgment because it was not an aggrieved party. However, the record indicates otherwise. Block indeed filed a cross-appeal after the entry of summary judgment in its favor, yet failed to challenge in its cross-appeal the Order certifying the class.